Gujarat High Court Case Information System
Print
SCA/5672/2008 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5672 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SHYAMLAL
@ RAMESH KISHANCHAND @ SUNDERLAL AHUJA @ SINDHI - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SATISH R PATEL for
Petitioner(s) : 1,
MS
SANDHYA NATANI, AGP for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 20/08/2008
ORAL
JUDGMENT
1. Heard
the learned advocate for the petitioner and the learned AGP for the
respondents.
2. The
petitioner-detenue has preferred this petition under Article 226 of
the Constitution of India, for appropriate writ, order or direction
for quashing and setting aside the impugned order dated 13.12.2007
passed by the respondent No.1-Commissioner of Police, Ahmedabad City,
in exercise of power under sub-section(2) of Section (3) of the
Gujarat Prevention of Anti Social Activities Act, 1985 (?SPASA Act??
for short) whereby the petitioner has been detained as a ?SDangerous
person??. In pursuance of the said impugned order, the petitioner
is detained in Porbandar Jail, Porbandar.
3. From
the grounds of detention, it appears that three offences being I-CR
Nos.474 of 2005, 333 of 2007 and 960 of 2007 have been registered
against the detenu at Satellite Police Station, under the provisions
of Sections 380 and 454 of IPC, wherein theft of articles like Gold
and Silver ornaments, watches, cash etc. were found from the
possession of the detenue. On the basis of registration of these
cases, the detaining authority held that the present detenue was
carrying on activities of theft which is harmful to the health of the
public. It is held by the detaining authority that as the detenue is
indulged in illegal activities, it is required to restrain the
detenue from carrying out further such illegal activities. The
detaining authority has placed reliance on the above registered
offences and statements of unnamed witnesses. In the opinion of this
Court, the activities of the detenue can, by no stretch of
imagination, be said to be disturbing the ?Spublic order.?? In
fact, a perusal of the order passed by the detaining authority shows
that the grounds which are mentioned in the order are in reference
to the situation of ?Slaw and order?? and not ?Spublic order??.
Therefore, on this ground, the subjective satisfaction arrived at by
the detaining authority is vitiated on account of non-application of
mind and the impugned order, therefore, deserves to be quashed and
set aside.
4. Except
the statements of some anonymous witnesses, there is no material on
record which shows that the petitioner-detenue is carrying on
activities of theft which is harmful to the health of the public. In
the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police
Commissioner, Surat [(2001)(1)GLH 393)], having considered the
decision of the Hon’ble Apex Court in the case of Ram Manohar
Lohia v. State of Bihar (AIR 1966 SC 740), this Court held that
the cases wherein the detention order passed on the basis of the
statements of the witnesses falls under the maintenance of ?Slaw and
order?? and not ?Spublic order??.
5. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention of a detenue, the detaining authority must come
to a definite finding that there is threat to the ?Spublic order??
and it is very clear that the present would not fall within the
category of threat to ?Spublic order??. In that view of the matter,
when the order of detention has been passed by the detaining
authority without having adequate grounds for passing the said order,
cannot be sustained and, therefore, it deserves to be quashed and set
aside.
6. In
the result, this Special Civil
Application is allowed. The impugned order of detention dated
13.12.2007 passed by the detaining authority is hereby quashed and
set aside. The detenue is ordered to be set at liberty forthwith, if
not required in any other case. Rule is made absolute accordingly.
Direct service is permitted.
Sreeram.
(M.D.Shah,
J.)
Top